Aug 27, 2003

EMPLOYERS COMMIT CRIMINAL BREACH OF TRUST
EVEN THE LAWS ARE AGAINST EMPLOYEES

New Delhi : “ We are not in favour of sending anybody to jail but that will be only the last resort,” said the Union Minister of Labour Mr Sahib Singh Verma recently in a press conference. He was speaking about the employers who habitually commit criminal breach of trust victimising their employees.
Nobody questions his reasons for such a favour to the employers in a criminal matter falls under section 405 of the Indian Penal Code having a provision for punishment of imprisonment up to three years, or with fine , or with both under section 406 of the Code. Such a favour is not generally shown towards the employees committing any criminal breach of trust. Its clearly a partisan approach of the Minister in this particular matter. What can one hope from this present system including the provisions of law when for the same offence an employee is liable to be punished with imprisonment of up to seven years and shall be also liable to fine under section 408 of the Code.
The utterance of the Union Minister for Labour was occasioned by the self-praise of the government and himself as a Labour Minister when he wanted to disclose the results of a special drive launched by the Ministry last month. Christened as “Compliance Control and Tracking System 2004,” the drive led to a recovery of over Rs 200 crore from the defaulters who did not deposited the provident funds cut from the employee's pay and employer's shares, Mr Verma boasted as if he is a great champion of the cause of the labour force and is totally against the unscrupulous employers. “The drive will continue until the entire money is recovered,” he boasted.
However, in reality, he preferred to help the offender or criminal employers by giving them sufficient time to save their skins. The attitude reflects the attitude of our present social and legal systems at large in which we generally avoid punishing the rich and the powerful until we are forced to take action against them. Let us see how we favour them who victimise their own employees.
A person is called an offender or criminal when he or she commits any offence or crime which are scheduled under the Criminal Procedure Code. But we never call the employers an offender or criminal when we the commit criminal breach of trust for the first time or habitually for years. We, from the common people to the rulers, love to call them merely defaulters. In this way, their social prestige remains intact even by committing a schedule crime. Then we help them by not arresting them, not filing FIRs against them, or not launching any criminal prosecution, as we see in the present case, when the Union Labour Minister himself declares that his government is not in favour of sending anybody to jail but that will be only a last resort. It's an irony that a government doing such a favour to offenders and criminals, who happened to be rich and influential employers having reach in to the corridor of powers, can also get sympathy of the victimised working class by merely speaking some good words for them.
What is the problem with the government who does not want to launch prosecution against the offender or criminal employers? The answer to this question has partially been answered in the earlier paragraph which deals with our general attitudes towards the rich , the strong , and the powerful. Our attitudes tilt in their favour while we possess some prejudice towards the poor, the weak and the powerless working class. One can see this attitudinal problems everywhere we try to search for, even in the seats of justice. One can cite an example from the recent judgement of the Supreme Court regarding the strike by Tamilnadu Government's employees. The government curtailed even the pension benefits of the employees who were legally entitled for, and when the employees went on strike, it was made illegal by an ordinance and government sacked lakhs of them and thousands were sent to jail. In that case, the Bench reminded the employees of their duties and robbed them of their 'right to strike.' The employer remained scot-free, who were responsible for near bankruptcy of the state exchequer, the ground on which the benefits of the employees were curtailed.
So why can we not prosecute the unscrupulous employers, even if they are thousands in numbers ? It is because the government fears of its fall, in case they launce prosecution. In fact, the whole system of governance has been hijacked by the employers and they fearlessly do whatever they want. Resistance by the employees could be the way out, but they are highly demoralised because they can be fired easily and now they cannot go on strike even for a just cause.
When the Explanation 1 and 2 were inserted in the section 405 of the Indian Penal Code dealing with the Criminal Breach of Trust in 1973 and 1975 respectively, the working class had a cause for rejoice. The Explanation 1 was inserted by Employees Provident Fund and Family Pension Fund ( Amendment) Act and the Explanation 2 was inserted by Employees State Insurance (Amendment ) Act. In both of the explanations, it is explicitly said that “ default in the payment of such contribution, …shall be deemed to have dishonestly used” by the employer and it would amount to commission of a criminal breach of trust. But the happiness of the working class was short-lived. A Majority of Employers have still been criminally active in such a “breach of trust” and employees are helpless. Employees get some respite only when some people including some public servants help them to get the money, however, unscrupulous employers are left unharmed.
The gravity of the situation can be gauged by the example given by the Union Minister of Labour himself. He says that the total outstanding arrears of the Provident Fund , and on July 2003 , stand at Rs 1756.21 crore. This year , the total recovery from the offender employers till July 2003 is only 410.96 crore. It shows the leniency of the government towards the offender employers.
Who is responsible for registering first information reports against the offenders ? The first person who knows of the commission of the crime, is generally the Regional Provident Fund Commissioner. He knows about the defaults even before the employees concerned. If the Commissioner does not act according to law, one can held them guilty of dereliction of duties. The Commissioners function under the Government of India, and when the Union Minister of Labour himself says that he is not in favour of sending the offenders to jail, how can the Commissioners launch any effective prosecutions against the offender employers ! It seems, there is a vicious circle.
It may be mentioned here that a criminal breach of trust is not a petty crime, and therefore, the nation cannot afford to ignore it. It's a cognisable and non-bailable offence triable by a Magistrate of the first class. If we want a better industrial relations, we have to enforce the laws without any favour to the unscrupulous employers or bias against the working class. Everybody has a right to justice, and employees should not always be crushed. For moral and equitable justice, we have to amend the laws and mindset of the people, who are interested only in reminding the employees of their duties and dishonouring or violating their basic rights. (EOM)